dissenting.
I am unable to give my assent to the decision of the majority of the court for the following reasons :
The plaintiff brought an action in the district court of Phelps county against the defendants to foreclose a mortgage upon real estate. The action was brought on the 19th day of December, 1889. No answer was filed until the 7th day of April, 1890, which seems to have been the day on which the trial took place, when the defendants, by leave of court, filed a general denial. The note appears to have been introduced in evidence without objection. The defendant, L.- S. Campbell, was called as a witness in his own behalf, and testified as follows:
Q. State if that note is in the same condition it was when you signed it.
Counsel for plaintiff objects, as immaterial, irrelevant, and incompetent. Overruled. Plaintiff excepts.
*180A. No, sir.
Q,. What change has been made, if any?
Objected to, as immaterial, irrelevant, and incompetent. Overruled. Plaintiff excepts.
A. The word “ bearer” has been written in there.
Q. Any words been erased out — were the words “or order” erased?
A. Yes, sir; I erased them, myself.
Upon this evidence the court held that there was an alteration and that it was fraudulent; and thereafter, but so far as appears not in open court, permitted an amended answer to be filed to conform to the alleged proof and rendered judgment in favor of the defendants and against the plaintiff, dismissing the action. It is very clear that the court erred in permitting an affirmative defense to be proved under a general denial. The requirement of the Code, that affirmative defenses shall be pleaded, is reasonable and just, and it is the duty of the court to see that this rule is not infringed. If a party has a defense, he must set it forth so that the adverse party may be prepared to meet it. Otherwise, if he rests his case upon a general denial, his proof will be restricted to controverting the facts stated in the petition. To permit a defendant, against the objection of the plaintiff, to prove a defense entirely different from that set forth in his answer, and then amend his answer to conform to his proof, is a gross violation of the rules of pleading and is liable to be fraught with great injustice, and particularly is this true where, as is evident in this case, the wrong was deliberately planned. The plaintiff is the indorsee of the note. He evidently is an innocent purchaser. Now, had the defendant set up in his answer the defense that the note had been altered by adding the word “bearer,” the testimony of the payee and others could have been taken and thus the indorsee have been prepared to defend his rights. Here was a snap judgment taken which deprived the plaintiff of a trial *181upon the real questions decided, viz., the alteration. That question has not in fact been tried yet. If the defendant may conceal his defense under a general denial and on the trial prove a defense which, in the absence of counteracting proof, will defeat the action, and which the plaintiff, taken by surprise, cannot be prepared to meet, why may he not prove payment, release, accord, and satisfaction, or other defense, and thus the beneficial effects of the Code as-to pleading affirmative defenses be lost. This is a step, and a most important one, in that direction. But the defendants, by filing an amended answer, in effect admit that such an answer is necessary.
It is the duty of the courts to uphold honesty and fair dealing and protect and enforce the rights of every one.
From time imrfiemorial courts of equity have granted continuances to permit one or both parties to obtain proof, add new parties or otherwise protect and save their rights, and under the Code this practice is still in force. In addition to this, a court will not determine without a hearing that an alteration is fraudulent. The presumption of innocence prevails until overcome by proof. It is not claimed by the defendants that they have any defense against the note itself that would be defeated by a transfer thereof to an innocent purchaser. How, then, are they defrauded, or can be? They can lose nothing by the transfer. The judgment should be reversed and the cause remanded for trial upon the amended answer.